Note that this is general information, not legal advice, and does not form an attorney-client relationship. Please consult a specialized lawyer to address specific legal issues with respect to vendors and contracts!
We’ll start out with the obvious: if you’re commissioning any sort of work for your show, you should have a contract. It doesn’t matter if they’re your friend or if you’ve worked with them a million times–contracts are important. At the very least, make it clear who owns what between you.
Under the law, the default is that when somebody makes something, they own that thing, and retain the rights to it. So, when you commission intro music or episode artwork, you’ll need a contract saying that you’re the owner of those assets, or have the rights (or a “license”) to use that work at the very least.
What you typically want is a “work-for-hire” agreement. A work-for-hire agreement, or WFH, can include things like: project timelines, a work schedule, milestones, and payment agreements. It should also definitely hammer out what the work ownership agreement looks like.
There are generally two ways that ownership gets decided: (1) a license arrangement where the person making the work (we’ll call him or her “the artist” for simplicity’s sake) retains the ownership of it and gives you limited rights to use it, and (2) a work-for-hire where the person paying for the work to be done (i.e. you) owns it.
In the license arrangement, the artist makes something for you, but they retain the actual ownership of it and the rights to it to use other places. Yes, this can be the case even if you were the one who paid for the work to be made in the first place, and often even if you were the one who gave the artist the idea and detailed instructions about what you wanted made! In other words, the artist still owns the underlying rights to the work, and they are just giving you limited permission (or a license) to use that work.
Here are some of the practical examples of how a limited license agreement might impact what you want to do with the artwork you’ve commissioned: in this kind of agreement, an artist could design your show artwork, and then reproduce the artwork as a mural somewhere. Depending on the scope of the license, they may even be to sell the show artwork to another podcaster to use for his or her podcast artwork, with or without much modification. Usually in the case of a license you are given limited rights to use the work for a limited purpose (i.e., “for use as the cover artwork for XXX podcast”), and sometimes for a limited period of time (i.e., “for a period of 5 years”), and in a limited territory (i.e., “only within the United States”).
Sometimes the license even comes with a separate royalty payment for the intended use or a separate royalty payment for uses outside of the intended use. For example, if you wanted to use the same cover art for your YouTube series, it may not be covered by the same license and may require a separate royalty payment. In a license agreement, you may also be limited in your ability to make “derivative works” from the artwork. For example, if your show art includes your name and your co-host’s name and then you switch co-hosts, you may not be able to switch out the name on the artwork without getting permission from the artist to do so.
The other type of agreement is a more standard WFH agreement, where you purchase the ownership of the work. In other words, all rights, in perpetuity, across the universe, are given over to you. For example, with a typical work for hire agreement that transfers ownership of the work to you, you’d be able to take your show artwork and print it on mugs and sell those mugs without having to worry about whether you have permission to do so or whether you owe the artist a separate royalty payment when you do.
Now, depending on the vendor you’re working with, you may have a mix between the two options–for instance, your artist may agree to not re-use the show artwork anywhere and that you can use it for whatever purpose you want in connection with your podcast, but that you can’t make any derivative works from it (like change the artwork or print it on mugs). It’s important to figure these things out ahead of time, so if you want to do things like sell merch, you know what you can and can’t do.
Now what can happen if you don’t have a WFH agreement? You may find yourself listening to another podcast one day and hearing your own intro music! Or you’ll find yourself dealing with a very angry vendor who wants a cut of your merch sales, since they’re made with their work and without their permission! Obviously neither of these are happy situations so, like we said earlier, get a contract!